Not every case is perfect. That’s the reality of the law. Each case has its strengths, and weaknesses. Each case has its own unique set of warts so to say.
Some of these weaknesses can be avoided. Some of these warts can be treated.
As personal injury lawyers, we see clients make mistakes all the time; and that’s ok. Nobody is perfect. But the reality is that many mistakes can be avoided if people understand how the law works; and has a grasp of the consequences of their own actions; or lack thereof.
So without further a due, we will examine the top mistakes which personal injury clients conduct in the course of their accident and long term disability cases. It’s our hope that by understanding some of these mistakes, that personal injury claimants will prevent them from happening to strengthen their claims so they can get the compensation which they deserve.
Mistake #1: Lying, Guessing and Making things Up (especially under oath at examination for discovery on on the stand at trial). Lying, guessing and making things up is a cardinal sin! This will completely destroy a Plaintiff’s credibility and likeability. These things go a long way in a personal injury and long term disability case. Nobody will believe what a liar or what an evidence fabricator has to say. If a Plaintiff does not know the answer to a question, or simply cannot remember; all s/he has to do is say that they don’t know or don’t remember. That’s it. Saying that you don’t remember is allowed. A judge and jury will understand an I don’t remember answer. A judge and jury however will be very upset at someone who is proven to be a liar. Upsetting a judge or jury won’t result in a favourable decision for a Plaintiff.
Mistake #2: A Plaintiff’ Delay in Reporting and Inaction are case killers. Money doesn’t just fall from the sky. Benefits from the insurance company don’t just fall from the sky either. In order for a Plaintiff or Long Term Disability Benefit to get the compensation which they deserve, they need to take action! The Plaintiff must report the accident to the police, report the accident or claim to their insurer, go see a doctor to report their injuries/disability and stick with the treatment plan, fill out forms for benefits and reach out to a personal injury lawyer. If a Plaintiff simply sits in bed or stays at home all day and does not reach out for help; then s/he will get nothing. A personal injury lawyer will not magically show up on your doorstep with a suitcase of cash to compensate you for your injuries. Nor will an insurance company mail you a cheque for millions of dollars to compensate you for your damages/injuries. A Plaintiff must go out there and make things happen; get the treatment s/he needs and reach out for help. The insurance company wants you to sit at home and do nothing. If you do that, then chances are a limitation period will expire and you won’t be able to document your injuries/disability for Court. Both of these things play right into the hands of the insurance company. They prey of an injured person’s laziness and inactivity. It makes the insurance company’s job at disproving your case and showing that a Plaintiff failed to mitigate his/her damages that much easier.
Mistake #3 Failure to get regular medical attention. This mistake ties closely with Mistake #2 above; but it bears its own heading because it’s that important and Plaintiffs fail to understand why that is. In a personal injury case, the Plaintiff bears the burden of building the case. That means that the Plaintiff has to prove to the Judge and Jury that s/he is disabled or injured. It’s not enough for a Plaintiff to go up on the stand and state that they are injured or disabled. This is self serving and uncorroborated evidence which carries little weight at trial. In order to have a successful personal injury or long term disability case, a Plaintiff will need specialists, therapists and treating doctors stating that the Plaintiff is injured. But how will one of these doctors or rehab professionals be able to state in confidence that the Plaintiff is injured or disabled when the Plaintiff does NOT see them for their pain, and does not attend at any treatment? Having a doctor/therapist with no skin in the game corroborate a Plaintiff’s pain and suffering is very helpful. In addition, showing that a Plaintiff is receiving regular medical attention/treatment is also very helpful in a personal injury case. It helps dispel the insurer’s regular argument which we hear in all personal injury and disability cases that a Plaintiff has failed to mitigate his/her damages. It also shows a pattern that the Plaintiff continues to be injured despite regular treatment and that those injuries/disability is having a serious and permanent impact on their lives.
Mistake #4 Assuming that the Insurance Company is Looking out for your Best Interests. It’s quite amazing that the same people who are COVID vaccine skeptics would also put their trust in an insurance company to look out for their best interests. Insurance companies are in the business of making money. They are NOT charities. Most of them are publicly traded corporations which exist to earn profits for their shareholders. Do not assume for a second that the insurance company will be sending a Plaintiff to doctors or service providers who have the Plaintiff’s best interests in mind. Do not assume that simply because a Plaintiff has been seen by a doctor hired by the insurance company that the doctor will prescribe him/her medicine and techniques to get better. Insurance Examinations are NOT about helping a Plaintiff or Disability Claimant get better. Rather, they are intended to justify an insurance company’s denial or create a paper trail that the Plaintiff/Disability Claimant is NOT disabled or as injured as they put themselves out to be. The doctor or rehab professional who has been hired by the insurance company looks out for their master and not the Plaintiff. At the end of the day, it’s the insurance company who is paying the bill for the assessment (using your premiums). The Insurance Examination is NOT covered by OHIP. It’s a private for profit transaction between a doctor/treatment provider and the insurance company. Do you really think that these insurance doctors are working for free?